Good news for record companies, bad luck for dancers

The IPKat reported last week on renewed moves to extend the term of copyright in performances and sound recordings in the EU. Well, they didn't hang around once they had decided to consider this topic.

At yesterday's Council meeting, the directive was adopted.  Interested readers can find the full PDF text here, but if you prefer to receive your copyright law in handy, bite-sized chunks, the main provisions are:

• The term of copyright for fixations of performances in sound recordings and for sound recordings themselves is extended from 50 years to 70 years (counted from the date of publication or communication to the public). 

Performers get to cancel copyright
in works which nobody cares enough
about to commercialise

• "Use it or lose it": If a record producer is not making sufficient quantities of the record available to the public after 50 years, the performers can terminate their assignment to the record producer, which also has the effect of terminating the record producer's copyright in the recording.

• Record companies will have to pay 20% of the revenues earned during the extended period into a fund. The money from this fund will be allocated to session musicians who received once-off, non-recurring payments for their performances.

• Where a performer is entitled to recurring payments which had been subject to advance payment or other contractually agreed deductions, then during the extended term those deductions will no longer apply.

The underlying rationale for extending the term of copyright is found in recital 5, which says:

Sir Cliff, before he started worrying
about an income gap.
© Allan Warren

Performers generally start their careers young and the current term of protection of 50 years applicable to fixations of performances often does not protect their performances for their entire lifetime. Therefore, some performers face an income gap at the end of their lifetime. In addition, performers are often unable to rely on their rights to prevent or restrict an objectionable use of their performances that may occur during their lifetime.

Is the term extension truly for the benefit of the performers? The major beneficiaries must be the companies who keep 80 cents of each Euro earned for the next twenty years. The 20 cents that they are required to set aside is the price they had to pay to have their copyright extended, allowing the directive to be presented as a favourable measure. 

Some performers are
more equal than others

This claimed rationale - concern for performers in later life - is further undermined when one examines the uneven treatment applied to different types of performers (and different types of recording).  The term of protection was left at 50 years for any performer's rights which are not fixed in a phonogram.  The term of protection was also left unchanged at 50 years for producers of the first fixation of a film, and for broadcasts.

If the intention is to ensure that performers do not suffer an income gap in later life, why stop with those whose recordings form part of works controlled by music companies?  Presumably, our politicians felt that dancers can leap over the income gap, actors can pretend it does not exist, and magicians can simply pull a few quid from a hat whenever they need to.

Copyright term for songs as literary and musical works
The Directive also addresses the calculation of term of copyright for combined musical and literary works when in the form of "musical compositions with words" (that's songs to you and me). The Berne Convention - and by extension the law of all EU states - requires that for works of joint authorship, the term of protection is counted from the death of the last surviving author, but different countries apply different criteria as to what constitutes "joint authorship".  Currently, in some countries, if the contributions are distinct from one another, there is no joint authorship, while in others, there is always deemed to be joint authorship for a musical composition and accompanying lyrics.

The new Directive requires EU member states to calculate the 70 year copyright term for both the music and lyrics from the date of the death of the last surviving member of the songwriting team (i.e. the last surviving author of the lyrics or composer of the musical composition), provided that both contributions were specifically created for the work in question. There should be no surprise here, as the pattern of all copyright harmonisation in the EU has been to force countries with more liberal regimes and shorter terms to move into line with the countries having longer terms and stronger regimes.